Drinking in Cold Places: The Impacts of Care and Control (Part 2/2) - Samantha Harvey
Now that we have examined several cases where the individuals in question have been acquitted of posing any realistic risk of danger to persons or property, it is important to consider what kind of actions have been found to create such a potential danger. In the case of R v Buckingham, the accused made the court’s job quite simple, although the justices did not seem excited to revisit the “thorny question of what constitutes de facto care and control of a motor vehicle.” Mr. Buckingham’s story starts out quite similar to the other cases we have examined. After a night of drinking, the accused discovered he was too intoxicated to drive his vehicle. Mr. Buckingham decided to leave the bar with the intention of taking a taxi home. However, it was a cold night and the accused was not dressed warm enough for the weather. He decided to wait in his vehicle for the taxi and started the vehicle in order to keep warm. The Court notes that Mr. Buckingham had on several occasions done exactly that: driven to the bar, had a couple drinks, and then took a taxi home. At first glance, we might assume that since Mr. Buckingham had a plan in place that may be corroborated by past actions, the Court would have found him to not be in care and control of the vehicle. However, in order to speed up the heater, Mr. Buckingham depressed the accelerator of his vehicle while he waited. Unfortunately, the accused then fell asleep with his foot remaining on the accelerator. To no surprise, police officers were alerted to the vehicle, as the motor was being continuously revved. The officers noted that Mr. Buckingham was unresponsive with his foot “hard down on the gas pedal.”
In Mr. Buckingham’s case, his defence argued that there was no realistic risk of danger. The defence stated that in order to set the vehicle into motion, the accused would have had to step down on the brake, push down on the lever, and pull the transmission lever towards himself. Further, Mr. Buckingham was able to rebut the presumption of care and control as the Crown conceded that the accused entered the vehicle solely for the purpose of getting warm and did not intend to drive the vehicle. Mr. Buckingham was acquitted at trial as the judge found that several actions were required of Mr. Buckingham in order to set the vehicle in motion. Further, Mr. Buckingham had a plan in place to get home. The trial judge believed that these facts indicated there was no realistic risk of danger. However, the Court of Appeal ruled that the trial judge placed too little attention on the fact that the accused was exerting pressure on the accelerator and was highly intoxicated to the point where he may have changed his mind and set the vehicle in motion, as his judgment was impaired. Thus, the Court of Appeal overturned the trial court’s decision and instated a conviction. This case indicates that even though a plan may be in place to get home safely, a judge may believe that an accused’s initial plan not to drive may ultimately change due to their state of impairment.
Another case in which the accused was convicted for care and control is that of R v Kowalik, which discusses the issue of establishing a plan to get home and how the degree of impairment of a person may affect the ruling. Mr. Kowalik testified that he had gone out for dinner and then went to a bar with a couple of friends. He then ended up sleeping in his vehicle with the engine running. Mr. Kowalik asserted that he lost his friend that he went to the bar with and tried to contact him several times without success. He also attempted to call a taxi but was informed it would be roughly an hour before a cab could arrive. Thus, since he had work in the morning, the accused sent a message to his boss. The content of the text message was a central issue in the appeal of the case, as the messages had been deleted. Mr. Kowalik states that the text message asked his boss to pick him up from his location next to the bar where his truck was parked, or if not there, at his hotel. He also asserted that the text clarified that if he was at his hotel, he had taken a cab, but this aspect was not proven. The boss indicated that he remembered the text asking him to pick up the accused on Main Street, as Mr. Kowlik was too intoxicated to drive. The boss left around six in the morning; however, Mr. Kowalik had already been arrested by that time.
In this case, because Mr. Kowalik occupied the driver’s seat, he had to rebut the presumption of care and control by indicating he had no intention to set the vehicle in motion. The Crown argued that since the vehicle’s lights were illuminated, there was an indication of Mr. Kowalik’s intent to drive. The trial and appeal courts agreed that it was a reasonable inference that if someone were intending to drive in the dark, they would ensure that the headlights were on. Further, the crown stated that if the accused was firm in his decision to sleep in his vehicle, then why did he mention to his boss that he may have to pick him up at the hotel? The trial judge found this to be direct evidence pointing to the fact that the accused, in his impaired state, could have decided to put the vehicle in motion in an attempt to drive to the hotel. Thus, the court found that the presumption had not been rebutted and, even if it had, Mr. Kowalik was still in the position to set the vehicle accidentally or intentionally into motion and pose a realistic risk of danger, as he was significantly impaired.
I personally struggled with the decision coming from R v Kowalik, as the judgment does not discuss whether Mr. Kowalik’s lights were automatic and whether they would come on by themselves once the vehicle was started. However, the decision does focus on the fact that the accused had no explanation for the lights being on. Thus, it is possible that the fact that the lights were not automatic was simply an issue that was left out of the judgment. However, the decision does reaffirm the importance of having an established and corroborated plan. Mr. Kowalik indicated that his text messages to his boss stated that if he ended up being at the hotel, it would be because he had taken a taxi there; the text seemingly corroborated the fact that he had a plan to get back safely. However, the judge found that it was not clear how Mr. Kowalik would reach the hotel and there was no proof aside from Mr. Kowalik’s statement that he intended to take a taxi. Thus, the judge found instead that the text message that could be proven—the one in which he asked his boss to pick him up from his parked vehicle or the hotel—actually revealed a realistic risk of danger to persons or property. Further, the case indicates that, should an accused be found behind the wheel in a state of significant impairment, the court may conclude that the impaired judgment of an accused may provoke them to set the vehicle into motion.
Thus, it appears that the law of care and control depends partially on the accused’s ability to provide evidence of an articulated and established plan to wait in the vehicle for a safe ride or to sleep in the vehicle for the night. In totality, these cases indicate that simply making the decision to sleep or wait in a vehicle while intoxicated may not be enough to save someone from a conviction where there is a possibility to set the car in motion while impaired without proof of alternate plans. Without a verbal acknowledgement of a plan not to drive the vehicle that can be corroborated by other parties or other steps that remove the realistic risk to persons or property, it may be difficult to disprove the presence of a realistic risk of danger to persons or property. Thus, there appear to be three factors that are frequently taken into account when analyzing whether there is a realistic risk of danger to persons or property caused by being in a running vehicle while intoxicated. First, the number of positive steps taken by an individual to remove themselves from the potential risk of danger; examples include moving to the backseat or engaging the parking brake. The first factor can also be taken into account as the number of positive steps it might take to hinder a person from setting a vehicle into motion, like pulling the lever or depressing the brake. Second, a clearly visible and articulated plan like calling a taxi or arranging for your friends to pick you up can be taken into consideration. The previously outlined cases indicate that corroboration by third parties is an integral aspect to proving the absence of a risk of danger. Third, it must be determined whether these factors may be rendered useless in the face of significant impairment. It appears that, at a certain point, the degree of impairment of the accused may override any positive steps that they took to reduce the risk, as the court might find that the level of impairment may lead to a sudden change of mind and the accused may decide to set the vehicle into motion.
 R v Buckingham, 2007 SKCA 32 at para 1.  Ibid at para 2.  Ibid at para 3.  Ibid at para 4.  Ibid at para 21. R v Kowalik, 2009 CarswellAlta 2329 at para 13.  Ibid at para 18.  Ibid at para 19.  Ibid at para 34.